Twitter's fight to kill Uncle Sam's censorship of spying numbers edges closer to victory

Effort to muddy transparency reports fails to impress judge

Twitter has won another round in its long-running campaign to publish numbers that the US government insists should be secret.

In October 2014, the microblogging and incitement platform filed a lawsuit against the Feds for permission to publish, as part of its government surveillance transparency report, the number of secret court orders it received seeking twits' data.

In the US, authorities can slap companies with National Security Letters (NSLs) and Foreign Intelligence Surveillance Act (FISA) court orders for information that prohibit recipients from telling anyone about the demand, based on the claim disclosure would harm national security.

These gag orders have met with resistance. So in a January 2014 letter to other tech firms regularly subject to data demands – Facebook, Google, LinkedIn, Microsoft, and Yahoo – James M. Cole, Deputy Attorney General at the time, offered a compromise of sorts: services would be allowed to publish specific numbers of data demands up to 249 and thereafter in bands of 250.

Anything more granular, the government argued in court filings, would – wait for it – harm national security.

The Feds later insisted Twitter was bound by these rules and then sought to dismiss Twitter's complaint about being gagged by arguing Cole's letter didn't really represent rules that could be challenged.

"The letter is permissive, advisory guidance; as such, it does not constitute 'final agency action' reviewable under the APA [Administrative Procedure Act], nor does it restrict plaintiff’s speech in any way," the Department of Justice claimed at the time.

The APA requires that federal agencies follow certain procedures when making binding rules, such as seeking public comment.

Twitter argued that Cole's letter failed to follow the APA and that its rights under the First Amendment had been violated. "These restrictions constitute an unconstitutional prior restraint and content-based restriction on, and government viewpoint discrimination against, Twitter’s right to speak about information of national and global public concern," the company said in its initial complaint.

In July, 2017, US District Court Judge Yvonne Gonzalez Rogers denied the government's effort to have Twitter's complaint dismissed. She found the government's restrictions constituted prior restraint – censorship – and lacked sufficient justification.

The government tried yet again in September 2017 to nix Twitter's objection with a motion asking the judge to reconsider her July decision.

On Tuesday this week, Judge Rogers again found government's arguments lacking and denied the motion.

In an email, Andrew Crocker, staff attorney for the Electronic Frontier Foundation, which has supported Twitter's claim, said he was pleased that the court reaffirmed its prior ruling that the government failed to respect the First Amendment by preventing Twitter from publishing a full transparency report.

"Companies like Twitter provide an important service by reporting the number and types of legal process they receive," said Crocker. "This basic information allows the public to begin to assess the scope of government surveillance, including how often it collects sensitive data on national security grounds. The court's ruling means that if the government wants to stop Twitter and others from publishing a transparency report, it cannot rely on vague claims that harm to national security will result."

It's not clear how the case will proceed from here. Dates for discovery and a trial have been set, but before that happens, the judge may ask Twitter and the feds to discuss options in a case management hearing.

Once a final ruling has been made, Uncle Sam may pursue an appeal. ®

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